Child and Parent in Roman Law
Abstract and Keywords
This chapter concentrates on the issues in which the Roman jurisdiction of the Empire intervened in the relationships between parents and their (minor) children. It discusses the ownership and use of the property of the children, the consequences of legal incapacity of the children, guardianship, limits of patria potestas and filial and parental duties. Children were to be constantly under someone else’s authority. This meant not only restrictions in managing property, and in incapacity to represent oneself or others, but also some privileges. Moreover, while patria potestas was an important tool in organising family finances, in propagating Romanness and proper family relationships during the Roman Empire, it was not without limits. The powers of the fathers were balanced by the requirement of pietas between parents and the children.
Roman society was a society of young people: at any one time, some one third of the population was younger than fifteen years of age (Parkin 2010, 105–107). The importance of children for the ordinary Roman without a pension system, living directly from agriculture and depending on physical labour, lay in the fact that children meant welfare, especially in old age. Children were crucial also for the elites: they stood for the continuity of family wealth, name and honour—and of the Empire itself (Vuolanto 2015, 30–34, 202–203). Moreover, it seems that at any given point, one sixth of all property was in the hands of fatherless children under fourteen, and up to one third was owned by young people under twenty-five.1 Still, “child and parent” was not a category of its own in Roman law.
In studies on Roman law, parents and children appear most often in connection with particular points of law, as accidental subject matter in cases when the main interest is on themes like parental authority, status of an individual or changes in Roman legislation during the early Empire. Since the 1980s social historians have also begun to use legal material to study family economy, parent–child relationship and child exposure.2 These two research traditions have interacted only sparingly, and only the recent boom of handbooks and companions has led to studies tackling children and law in the context of the Roman family in a more comprehensive manner: Judith Evans Grubbs (2011a) has shown how the legal understanding of relationships between children and parents was used to propagate Roman family values, especially pietas, among the less Romanised population. Thomas McGinn (2013) has argued, in turn, that (later) Roman legislation specifically favoured children.
(p. 488) In the following I will study the main points where Roman lawgivers of the Empire tried to intervene in the relationships between parents and their (minor) children, and to seek reasons for their interest in these cases. The texts discussed in this chapter can be divided roughly into two categories: firstly, those dealing with the property of children and the consequences of their legal incapacity; questions of guardianship are at the centre of this part of the discussion. The second theme is parental power over the person of the child, with discussions on patria potestas, maternal authority and personal status at its core; exposure, killing and selling of children are the main topics here. The third section deals with the reciprocal obligations between parents and children.
37.2 Wealth, Parents and Guardianship: The Economic Incapacity of Children
The use and protection of family property played a central role in Roman law. In these considerations the status of the children was more important than their age. In principle the pater familias, the eldest sui iuris ascendant in the male line of the familia, not only had complete ownership of the family’s assets, but also legal liability for his dependants and for contracts involving them. Thus, children (or grandchildren) under the pater familias could, as a rule, not own the property they had accrued by way of gifts or testamentary bequests.3
Still, children in potestate could be given financial assets to use: the peculium. By the early Empire, activities based on the peculium had become a common part of Roman economic life, offering a means for offspring to undertake independent financial actions—especially if given “free administration” (libera administratio) of the fund, as was often the case—while at the same time providing limited legal responsibility for the fathers involved. Complex legislation was enacted to regulate the relationships between the owners, the users of the peculium and third parties; the exact legal nature of the peculium remains a matter of scholarly debate in modern literature.4 A father could, if he so wished, release his children under his power by emancipatio. The children then became independent, sui iuris, and capable of owning and managing property. Unfortunately, there is little information on the scale of or motivations for emancipation before late Antiquity, when children seem to have been set free from the paternal power on reaching adulthood as a matter of course.5
When a minor child was emancipated, the situation was the same as when the father had died: a guardian was required. As the principal task of the guardian was to take care of the economic arrangements of his ward’s maintenance and to be the spokesman in legal matters, tutela included the administration of their running expenses, authorisation of contracts, (p. 489) paying debts and investing profits. Extensive legislation developed to regulate different aspects of tutela: there were detailed rules for applying to act as guardians, for the administration of their duties, like selling of landed property, and for giving reports during and at the end of the guardianship.6 The troubles and burdens of guardianship (both for tutores and for the wards) became a topos in Roman law and literature. On the other hand, to exercise tutela was almost as a sacred officium: the way one administered guardianship revealed one’s virtue or moral weakness.7 The legislation left some scope for independent action for the ward, however, if old enough: infantes were not able to administer their own affairs at all, whereas impuberes, which later legislation defined starting at the age of seven, could administer their own affairs to some extent, but needed the authorisation of their guardians.8
Upon reaching the age of puberty a person sui iuris attained their full legal capacity. Tutela ceased, and it was possible to administer one’s property and to contract a marriage. There was discussion in the legal literature whether puberty should be determined individually or set at fourteen for boys: Gaius in the second century ad presented both alternatives for determining majority, but in the Justinianic legislation the formal age of majority for boys was fixed at fourteen. In general, the age in years probably had less relevance than the individually and locally changing notions of majority.9 In the city of Rome, for example, adulthood for boys began with the ceremony of the taking of the toga virilis. In the Roman Republic, this meant being subject to military service and having the right to vote in the comitia. The age for this depended on individual circumstances (family situation and traditions, the actual puberty), with considerable variation between thirteen and nineteen years of age (toga virilis: Harlow and Laurence 2002, 67; Rawson 2003, 142–144). For girls, the marriageable age was twelve, but here also the actual age of puberty and subsequent marriage often seem to have been more important factors for social majority (Harlow and Laurence 2002, 13–19; Dixon 1992, 101).
Still, even persons no longer regarded impuberes could not achieve full economic independence if they were less than twenty-five years old. These minores were considered to lack judgement and continued to need guidance. Therefore, special protection was afforded them, first from the early second century bc by their ability to plead under the lex Plaetoria if defrauded, and later in the pretorian edict, by the right of restitutio in integrum (“restoration to original condition”). In order that minores could still do business, it was possible for them to apply for the appointment of a curator: without his approval any transaction was not binding. To have a curator became mandatory during the reign of Marcus Aurelius.10 Consequently, cura minorum and tutela, which had intermingled (p. 490) in some contexts already by the early second century ad, began to merge and by the end of the fourth century there was but one institution, even if a formal difference can still be seen in Justinian’s Code.11 Guardianship was only one, albeit probably the most usual, way of organising or manipulating the financial strategies. For the wealthy, Roman law also offered other instruments such as adoption, usufruct and fideicommissum.12
It has been estimated that during the early Roman Empire between 37 per cent and 50 per cent of the population still had fathers living at the age of twenty-five (Saller 1994, 189; on demographic models see n. 1). For them, if they were not emancipated, legal majority (or marriage) did not mean any change—all property remained under the management of the father. For daughters this situation was due to the change in the forms of marriage. By the late Republic most marriages were contracted sine manu, meaning that the bride remained under her own father’s power. In these marriages there was no hereditary relationship between a mother and her children until, under Hadrian, the senatus consultum Tertullianum enabled mothers who had the ius liberorum to inherit from her children, and then, in 178, the senatus consultum Orphitianum gave children (both legitimate and illegitimate) first claim to inherit from their mother upon intestacy (Gardner 1998, 228–233; McGinn 2013, 346–348).
Mothers could not legally intervene in the property management of their children. While legislation gave mothers the obligation to find a guardian for the child if there were none appointed in their father’s will (tutor testamentarius), or there were no older paternal male relatives available to act as tutor legitimus, she could not serve as a guardian herself. Not only did widowed mothers belong to another line, but they could also remarry and thus be more inclined to act against the best interest of their children and their paternal relatives. Still, reality was different, and even Roman legislation acknowledged the strong role mothers had in the lives of their children. Thus, magistrates were obliged to obey the will of the mother in nominating guardians, and the mother had the duty to oversee them. Mothers also often acted as (unofficial) guardians and advisers to their children. Mothers’ guardianship was institutionalised in the late fourth century ad, even if only on condition that they did not remarry.13
In all, how the property of children was used and protected was a major concern to Roman lawgivers. Legislation concerning the property of minors was based on two principles: firstly, childhood was a separate, vulnerable life phase during which children’s property needed protection. Secondly, being in tutela was a special threat to the patrimony. Roman law on guardianship was very detailed, and for no other issue in the legislation dealing with minor children is there as much contemporary discussion and legislation preserved for us. The spread of guardianship through cura minorum extended the period of vulnerability even to ages over twelve or fourteen. Moreover, it seems that a change took place in the late Republic as the idea of seeing guardians primarily as protecting (p. 491) the property and the interests of the agnatic kin group was supplanted by the idea that guardians were to be chosen for the benefit of their wards and also for their upbringing. Children’s way of life (mores), character and living circumstances were to be taken into account in decisions concerning guardianship.14 Still, guardianship was a means of protecting not only the children, but also the interests of the family line and the res publica.
37.3 Authority in Person: Pater Familias and Parental Power
As far as children’s property is concerned, patria potestas was not in any way a peculiar system during the minority of the children and while they remained in their father’s household. However, the Roman father’s extensive powers over the persons of children have generated much debate among scholars of the Roman world—especially as the powers given to the pater familias were seen as a peculiar feature of the Roman legal system even by the Romans themselves (see esp. Inst.Gai.1.55). The basic principle is clear: the pater familias had total power over the person of his dependants. In its most simple form, this meant that a father had an unlimited authority, unequalled by others, to discipline and punish (McGinn 2013, 257; Saller 1994, 114–120, 142).
But the power of the father was linked to social expectations, balanced by the requirement of pietas between parents and children—an affectionate relationship characterised by reciprocal responsibilities across the generations: parents were to take care of their offspring during their minority, and children were expected to honour their parents and take care of them in old age.15 Still, the Roman father seemingly possessed the right to sell or even kill his children. In particularly, Roman fathers’ right to kill (ius vitae necisque) was perpetuated in the literature of the late Republic and Roman Empire, thereby creating an idealised vision of Republican times as a paradise of paternal power, moral strength and gravitas, with just fathers putting the interest and continuity of res publica ahead of their own lineage. However, there are no historically documented cases known to us in which a father killed his child legally.16 However, in the Augustan legislation, fathers were given a right to kill their daughter in cases of adultery, albeit within such narrowly defined limits that it is often assumed the condition would hinder any actual action under the law (D.48.5.23–24 with Benke 2012, 292–293). These “faint echoes” of the right to kill show that the extensive rights connected with patria potestas had relevance as a part of the Roman identity—if not in everyday Rome. The position and power of the pater familias over his household were (p. 492) crystallised in the ius vitae necisque in a way that made it impossible to expressly abolish it, even if in practice the legislation left no place for it to be realised (quotation: Westbrook 1999, 221; see also Benke 2012, 288–289, 293).
Cicero, for example, thought that patria potestas had “originally” included some kind of a right to sell one’s children,17 but for the period for which we have sources, the selling of freeborn children or pledging them loco servi were understood as offences—but with no punishment to parents. The situation reflects two tendencies in Roman family legislation of the Imperial period: firstly, honouring the (imagined) mos maiorum made it impossible to explicitly restrict the powers of the pater familias, and secondly, losing one’s freedom was ideologically regarded as a fate worse than death: “Liberty was of such value for our ancestors (a maioribus) that fathers, who had ius vitae necisque towards their children, were not allowed to take away their liberty.” However, in legislation no distinction was made between fathers and mothers here, and there is no trace of any ius vendendi as a father’s legal right to sell his children into slavery during or after the late Roman Republic.18
Even if it seems that there was no special ritual with legal content by which the father accepted the newborn child (Shaw 2001, 56–77), Roman law seems to have viewed newborn children differently than it did older ones. This is evident in the selling of children: the selling of older freeborn children was disapproved of, and yet parents had the right to sell their newborns.19 Nor were there any legal prohibitions against children being exposed or killed at birth by their parents before 374 ad (CTh.9.14.1 [infanticide] and C.8.51.2 pr.-1 [exposure]). Still, there are no sources that would give a Roman father any legally sanctioned right to kill, reject or abandon his newborn children or to give them away, and no Roman text links these acts to patria potestas.20 Indeed, when newborn children are discussed in legislation, the parents are discussed together—there is no indication that the principal actor would be or should be the father.21 Thus, the attitude towards the newborn child depended on the social and legal status of the baby, as a creature in the marginal, only in the process of becoming a member of the society (Laes 2014), rather than about patria potestas. It was a question of parental, not paternal authority.
Whereas the idea of patria potestas remained the leading principle in organising the economical relationships between fathers and children during the Roman Empire, it had very little relevance in relation to matters of the person. The lack of evidence makes it impossible to conclude if there were any actual changes to the Republican regime. Still, (p. 493) ideologically, patria potestas was an important tool in propagating Romanness and proper family relationships.
37.4 Mutual Duties and Obligations: The Best Interest of the Child?
How far were parents expected to support their children, and what were children’s obligations towards their elderly parents? Filial pietas required children to respect and obey the parents, and, consequently, support a father and other relatives in need. Indeed, the obligation also concerned mothers and maternal relatives, based on an estimation on fairness and affection for kin. The traditional notion of pietas was interpreted as a legal principle: what pietas demanded should also be the law. Law regulated the financial side of the parent–child relationship with the aim of safeguarding the rights and safety of the parents also in their old age.22
On the other hand, pietas required parents to behave dutifully towards their children. In this sense, the principle of pietas was above patria potestas—parents, even fathers, could not act entirely as they wished. Thus, for example, children had the possibility of bringing an action of undutifulness (querela inofficiosi) if mistreated or disinherited in their parents’ will (Frier and McGinn 2004, 377–383; Champlin 1989, 204–205, 209). More generally, the sustenance of minor children was self-evidently part of the parental pietas—nobody could deny his children, leaving them without support. Even if this emerged as a legal obligation only in mid-second century ad, it had a long history as “a moral obligation and social expectation”. A person who denied material support to newly born (partum) children was deemed to have killed them. Furthermore, a mother could not seek compensation for the upbringing of her own children; this was her duty. That the protection of children’s interests was at play can be also deduced to the degree that it was legal for the husband to make it a condition of a legatum that a widow should not remarry as long as she had underage children.23 A case in the Digest about a father’s obligation to support his adult son, a craftsman unable to provide for himself because of illness, without any reference to their legal relationship (emancipated or not), also indicates that patria potestas had here no significant role (D.188.8.131.52 with Evans Grubbs 2011a, 383). These obligations would go against a father’s right to abandon his offspring—leading to the conclusion that exposure was seen to take place only in exceptional circumstances and before the child’s integration in the family.
In case of divorce the principal rule was that children followed their father as members of his familia. Still, there were disputes about children, and sometimes the mother (p. 494) challenged the father’s will and even obtained custodia of her children. However, the father did not lose his potestas, and was obliged to pay for maintenance.24
Because of the obligation of support and matters of inheritance, children born after divorce or after the death of the father were given special attention in legislation. Indeed, decisions regarding children’s status had to be done as soon as possible so that there would be no disadvantage for the child: the law ordered notification of the pregnancy and possible inspections to determine paternity.25 An unborn child is to receive maintenance since he or she is born for the benefit of both the ascendant male (parenti) and for the community (rei publicae); similarly, an abortion was seen as violating the rights of the father—there was no “right to life” specifically for the foetus.26
On the other hand, many legal texts use the argument of a child’s best interest. For example, a failure to notify early enough of the pregnancy could not harm the best interest of the child (even if it could harm the parents’), and an unborn child could be given a special guardian, curator ventris. Still, only in the fifth century ad and with the (Christian) aim of trying to make divorces more difficult, an idea appears that divorce itself could be harmful for the children.27 In all, “the interest of children is defined in a manner at least potentially distinct from those of other members of the family” (McGinn 2013, 354). Still, when the advantages for children are referred to, also the benefits for the Roman Empire are paid attention (e.g. in D.184.108.40.206; 24.3.1; Nov.Maior.6.9 [a. 458]).
On the whole, the well-being and protection of children cannot be considered as self-evident starting points while discussing children in pre-modern legislation. Thomas McGinn has, however, argued that the Augustan laws were a starting point for the favouring of the children in Roman law.28 Whereas there is a general consensus that the legal position of children indeed enhanced during the early Empire, it seems that this was an unintended development in Roman law aiming rather at favouring the interests of (elite) lineages, and the inviolability of the freeborn status in slave society. The changes in second-century-ad legislation, which reorganised inheritance patterns, could also be explained as indications of the strengthened importance of agnatic lineage, rather than specifically aiming at protecting the financial interests of children. Moreover, the status of individuals was central to the legal discussion. Freeborn children were to be returned to their original condition, and, for example, parents selling their children were not punished. The concept of “child labour” did not exist, and parents were free to lease out work of their children as they wished as far as it did not endanger the child’s freeborn status.29 Children were discussed in the context of their families, especially parents, and it was not so much the children themselves, but rather their wealth and status that the Roman legislation protected.
(p. 495) Indeed, the Roman legal system seems to have used children’s status as an important way to influence society and proclaim proper values. One example of this was that, traditionally, soldiers could not enter into a marriage. The only familia military men should have was their legion. Even if soldiers freely formed permanent relationships with women in places where they were serving, a child born from such union was not legitimate and followed the mother’s status. These children were officially fatherless (sine patris), like all illegitimate children. In the mid-second century, a soldier could name his children and their mother in his will, but only at some time during the reign of Septimius Severus were soldiers in service allowed to marry (Phang 2001, 89–114, 379–389). The rights of these “natural” (naturales) children caused much debate in late Antiquity, and the policy on illegitimate children fluctuated; Constantine, for example, prohibited fathers of illegitimate children from leaving anything to them, while Valentinian I allowed some inheritance to be given to them, and Theodosius II was even more “liberal”.30 More generally, no legitimate children could be born from unions between free and slave: all children of slave women were slaves and legally belonged to masters.31 The free and respectable were to be kept strictly separate from the servile and lowly.
Roman legislation, or rather, the culture that produced it, recognised childhood as a separate period of life, but one which had no clearly differentiated age limits—its end was a gradual process starting at the age of twelve (girls) or fourteen (boys) and puberty, furthered by marrying and having children, and concluding with full legal independence at the age of twenty-five. During this period these individuals needed special care and protection. Children were to be constantly under someone else’s authority. This meant not only restrictions—in managing property, and in incapacity to represent oneself or others—but also some privileges; children before puberty, for instance, were legally incapable of committing a crime.32 There were also legal remedies to which children could appeal, like restitutio in integrum. Moreover, the best interests of children were invoked in legislation, and, in all, “the second-century emperors took a particular interest in the welfare of the children and in fostering parent–child links”.33 Still, because the second century also marks the earliest high point of our knowledge of the Roman legal sources, it is arguable whether the actual sentiment towards children was any more positive or favourable than it had been earlier in the Roman world,34 or whether the motivation of legislation was to yield any special favours for children; the changes in legislation may be seen as natural responses to (p. 496) the issue that much of the wealth was in the hands of minors. A complex society needed to ensure that its financial life functioned.
In all, children were not by any means marginal to the concerns of Roman legal authorities.35 Roman law tried to promote familial pietas, protect the economic interests of family lineages and defend freeborn status. Even if these aims do not as such refer to any specific favouring of children, this certainly shows an understanding of childhood as a distinctive phase of life, to be dealt with through specific legislative measures.
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(2) See the bibliography at the end of the chapter. For social historical research see esp. Dixon 1988 and 1992; Saller 1994 and 1999, with e.g. Arjava 1998 on paternal power; Rousselle 1998, 168–178 on pederasty; Vuolanto 2003 on selling of children; Evans Grubbs 2009, 2011b on abandonment.
(3) See e.g. Inst.Gai.2.86–90; 2.123–124 with Benke 2012, 287; Frier and McGinn 2004, 291–296; Saller 1999; and Matthew J. Perry, ch. 33. It has to be noted that a pater familias might have been himself a minor—or a woman.
(7) Responsibility: D.220.127.116.11; C.5.51.9 (a. 293) and C.5.46.2 (a. 246). Securities: e.g. C.5.42 passim; (Imagined) troubles for wards: D.18.104.22.168; Lib. or. 1.4 with Krause 1995, 13–145, 173–175; on moral weight of guardianship see Cicero on Verres as a tutor: Cic. Verr. 2.1.9–94. See also Cic. Clu. 41; Juv. 8.79 and Gell. NA 22.214.171.124 with Saller 1994, 19–192, 199–202.
(10) D.4.4.1pr.-3 and Inst.1.23pr., with Fayer 1994, 593–611 and Saller 1994, 188–189. Originally, women were under tutela mulieris after their tutela minorum had ended, but when this institution dissolved they also received a curator (e.g. D.126.96.36.199).
(11) D.27.1.13pr; D.188.8.131.52; D.4.1.8 with e.g. Apul. Apol. 68; no difference in Leg. saec. 8 (=Librum iuris syro-romanum 8) and Nov.89.14, but difference still indicated in Inst.1.23 and Nov.72. See also Saller 1994, 188 and Beaucamp 1990, 101 and 319.
(14) For the emphasis on property see D.50.17.73. Late Republic see e.g. Cic. Off. 1.25.85; D.26.1.1. For the early third century see D.184.108.40.206 with D.27.4. On the claimed shift in the purpose of guardianship see McGinn 2013, 354–355; Rawson 2003, 71–73; Krause 1995, 86–87.
(16) Ius vitae necisque: Westbrook 1999 (dead letter) vs. Shaw 2001 (myth) vs. McGinn 2013, 356–357 (symbol of authority) vs. Benke 2012 (marginal application). For the literary tradition see Gaughan 2010, 23–52 and Westbrook 1999, 206–207. See also a Hadrianic case with a father having appealed this right in vain: D.48.9.5 with McGinn 2013, 356 and Frier and McGinn 2004, 196–203. In D.48.8.2 and C.9.17.1 (a. 319) the killing of one’s children is self-evidently prohibited.
(20) See e.g. D.28.2.11, which refers to infanticide as being permitted to fathers “once” (in the past). For exposure and rejection of children see Westbrook 1999, 208–209. Moreover, the father did not need to be a pater familias. This against e.g. Benke 2012, 288 and Dixon 1992, 40, 122; see also Evans Grubbs 2011b, 22–24.
(23) D.220.127.116.11-17; C.8.46.9 (a. 294); C.8.51.2pr (a. 374) with McGinn 2013, 352–353 (quotation), 357; Partum: D.25.3.4; Pietas of the mother see e.g. C.5.31.6 (a. 224) and D.18.104.22.168 with Evans Grubbs 2011a, 384; Condition for legatum: D.22.214.171.124.
(32) D.47.2.22pr and 23, with Rawson 2003, 74–75, 138–139 and Thomas 1975. The condition of being doli incapax could end at the age of ten if the children in question could be shown to have understood the nature of their deed.